Silicosis – 10 000 gold miners getting set to sue

Tagged as victims of ‘the world’s
biggest, longest running industrial disaster; dwarfing
Chernobyl’, 10 000 known silicosis-affected southern African gold
miners are finally set to negotiate a payout that could induce a
painful paroxysm of shareholder coughing across the Johannesburg Stock
Exchange.

Richard Spoor, the lead lawyer who a year ago secured a landmark
Constitutional Court ruling allowing lung-diseased miners to sue their
employers for substantial damages (under common law), said the
application for certification of a class action, plus a process for
establishing liability, would come before the South Gauteng High Court
‘within months’.

Spoor has out-of-court settlements from asbestos mining houses
totalling R1.1 billion since 2003, all of which precluded a ruling on
the constitutionality of archaic mining legislation that in some cases
limited medical incapacity payouts to just R1 000 for every year
worked. The latest litigation is virgin legal territory and may well
bring substantial financial relief to those injured or to relatives of
those killed by mining-acquired silicosis.

After meeting his senior advocates on 9 April this year, Spoor told Izindaba
that the final form of the application would depend on the responses of
the individual defendants, AngloGold Ashanti, Gold Fields, Harmony Gold
(South Africa’s biggest gold miners), and smaller producers, DRD
Gold.

‘We want to discuss the process with them. Our court
application includes a recommendation to the judge on how the matter
should be dealt with. This is something completely new and we want the
mining companies’ input as to whether they think it’s fair
and appropriate. At the core of our position is that if we don’t
deal with it on a collective basis, people will not get justice.
It’s a crazy notion to think that somebody in some remote
Transkei, Lesotho or Mozambican village can bring a civil action to
recover damages – that just won’t happen; that’s why
a class action is appropriate.’

While each individual miner will have to prove damages (via an
independent medical panel), the basic principles governing any award
will be what the South Gauteng High Court adjudicates on, paving the
way for the setting up of a Silicosis Trust from which funds would be
disbursed. Actuaries will use the best epidemiological data to table
individual company award amounts (how many cases, of what severity,
ages, life expectancy and geographical information per respondent gold
mine).

Based on his previous out-of-court settlements with asbestos mining companies (Gencor, Hanova, Eternit, et al.)
in 2003 and 2006, Spoor is confident that the trust fund model can be
sufficiently enlarged and administered to handle what currently stands
at 15 times as many victims.

Mining executives take a deep breath

A 2009 collaborative study by the University of the Witwatersrand
and University College, London, estimates there to be 288 000 cases of
compensable silicosis in South Africa, which would put that unpaid
liability at R10 billion in 1998 values (R27 billion in today’s
values). This gives some indication of what even lesser settlements
could do to shareholder values on the Johannesburg Stock Exchange and
how the ConCourt ruling must be focusing the minds of senior mining
company executives.

Spoor said that his estimate was of ‘at least’ 200 000
workers needing follow-up, screening ‘and hopefully,
treatment’. Identification of legitimate claimants is complicated
by geography, awareness and a dysfunctional public health system but
the numbers are already growing in their thousands every year (more
than 7 500 in Lesotho and over 2 000 in the Eastern Cape at the time of
going to press). While there had been no formal engagement of the gold
mines at the time of writing, Spoor said there was ‘a fair amount
of sounding out – we have a consultant encouraging thinking and
discussion to create a high-level awareness for the company to make the
right decisions’.

ConCourt ruling the ‘tipping point’ for claimants

The tipping point came in March last year when Spoor asked the
Constitutional Court to declare unconstitutional a section in the
workman’s compensation legislation prohibiting workers from suing
their employers. The case he used was that of a single R2.5 million
claim turned down by both the High Court and the Court of Appeal on the
grounds that the State had set up a compensatory system and that the
quid pro quo was that this precluded the possibility of civil suits.1
The AngloGold Ashanti miner, Thembekile Mankayi (who died of lung
disease two weeks before the ConCourt ruling), was laid off for R16 000
(representing just over R1 000 for every year he had worked). His
payout was made in terms of the Occupational Diseases in Mines and
Works Act (ODIMWA), which specifically and exclusively caters for (in
limited terms) sick miners. AngloGold cited the relevant section of
ODIMWA which clearly states that compensable diseases are prohibited
under the Workman’s Compensation Act. The ConCourt upheld
Spoor’s contention that both laws trampled on Mankayi’s
common law rights.

Ironically cabinet resolved as far back as 1998 to re-align the two
acts, but disagreement between government and the Chamber of Mines over
who would pay the costs associated with lung-diseased mineworkers
quickly snuffed out the initiative. Government was reluctant to carry
financial responsibility for laws it had no hand in making while the
mines cried foul over potentially carrying the financial can for mines
that had stopped operating. Spoor put it succinctly, ‘Basically
the laws acted as a subsidy to the industry. The real cost is borne by
the workers, their families and the public health system. The
“polluter pays” principle should apply to occupational
health – but it doesn’t.’

Track record of medical panel

Cape Town medical specialist in public health, Jim Te Water
Naude, one of Spoor’s large team currently assessing claimants in
preparation for the South Gauteng Court application, gave some idea of
how ‘recruitment’ might go by citing previous experience.
He said his occupational medicine panel screened 14 000 ex-asbestos
miners over the last 7 years, working mainly with rural GPs. Numbers
peaked at 3 000 people annually in 2007 before tailing off. Some 4 000
were found to be compensable. Three per cent of them (420) had
mesothelioma which, along with lung cancer, meant they lived on average for about a year.

The Asbestos Relief Trust (2003) and the Kgalagadi Relief Trust
(2006) paid individual miners about R280 000 for mesothelioma and about
R210 000 for lung cancer while severely lung-impaired workers received
about R60 000 (half this for moderate or mild lung impairment).

‘This new case is going to be a lot of hard work with a whole
lot of challenges, not the least of which is the triple epidemic on the
mines of HIV, TB and silicosis. In the 90s the gold mines downsized
from about 800 000 workers to 400 000 and the triple epidemic was (more
quickly) exported to where the miners came from.’ Te Water Naude
said the relationship between silicosis and TB (owing to the macrophage
system being overwhelmed by small particles of crystalline silica which
comes co-compounded with gold ore) was well known.

Tina da Cruz, a legal associate of Spoor’s co-ordinating
claims in Maseru, said she was working with the Mineworkers Development
Agency (MDA)’s Lesotho Country Office identifying potential
claimants for the class action. The MDA’s experience in
helping the Asbestos Relief and Kgalagadi Relief trusts find former
asbestos miners was proving invaluable. Field teams of former miners
and lawyers created awareness among former gold miners and their
communities in all districts of Lesotho while similar teams were
working in the Bizana area of the Eastern Cape.

Te Water Naude said once claimants were found, the project’s
potential for improving public healthcare delivery was huge, citing the
vastly improved Kuruman postmortem service via their efforts on behalf
of asbestos victims. ‘Basically we introduce a high-quality
management system, making sure that we communicate well upstream and
downstream’ (again, using private healthcare practitioners whom
he said produced work of excellent quality in 85% of cases). His team
was by mid-to-late April inspecting doctors’ reports of 30
lung-impaired gold miners examined in Maseru and another 45 examined in
Mthatha. The reports include lung function, chest radiography and a
clinical evaluation.

In an aside, Te Water Naude said the glaring lack of continuing
medical education in far flung towns was best illustrated by one GP in
Prieska who attended their team’s talk on asbestos-related
diseases in November last year. The doctor said it was the first time
in two decades he’d seen any kind of external continuing
professional development activity.

Major potential to boost public healthcare

Other exciting developments included channelling PEPFAR funding (via
a Yale University initiative) into their programme to help treat
ex-miners with HIV and TB and looking further afield to ‘see what
there is beyond compensation; we want to use a future settlement to
bring more synergy,’ he added.

Spoor said the clinical work was not an attempt to duplicate the
dysfunctional state system which had no proper monitoring or
surveillance, but to complement and improve it by linking into the
statutory system.

He said that a ‘significant’ percentage of lung-impaired
miners died without being diagnosed, mainly because of inadequate and
inexpert postmortem services (cardiorespiratory organs need harvesting
and in most cases, storing and transport). This meant that, in the
main, only the organs of those who died in service (mostly black
miners) and most white miners (with access to facilities) were examined.

Asked whether he’d be asking the court for an order preventing
or minimising future lung impairment, Spoor said the settlement would
have to make provision for wherever mine inadequacies were found.
Medical monitoring and surveillance and treatment, especially for TB,
were the two major issues.

‘This is about holding people to account and once
that’s done you can expect substantial improvements in the
workplace. Silicosis is a preventable disease. If you can kill and maim
people without consequences there’s obviously no reason to stop.
I must say the State’s role as policeman of safe and healthy
environments has not been much to write home about, in fact the State
has proved itself incapable of policing the mines. The criminal justice
system is not working, so civil accountability is the only model left
to us.’

Asked how long it could take to settle the class action, Spoor said
that based on his past experience, anything from 18 months to 5 years;
it will all depend on the attitude of the gold mine executives and how
well they recognised the inadequacy of existing compensation regimens
and their moral obligations. ‘It comes down to the CEO and the
kinds of lawyers they get – this is not a game for
bluffers.’

He said the role of actuaries was crucial because, if the
settlement proved inadequate, claimants could ‘come after
me’ –
which is why a senior advocate was retained exclusively to ensure the
payout mechanism and the kitty were adequate, providing him with what
was legally termed, a ‘comfort note’.

Asked what his fee was, Spoor said it could either be built into the
overall settlement or established by agreement with individual clients
not to exceed 15% of their award.

‘As a point of reference the Gencor (asbestos) settlement was
worth R450 million and my fee was R2 million for what amounted to 5
years of work. I’m saving up for a new car,’ he quipped.

One of his senior legal colleagues told him that the silicosis
claim, when compared with famous historical mining claims in Australia
and the USA, the Chernobyl and Fukushima nuclear meltdowns, and the
Bhopal chemical leak in India (in terms of numbers killed and injured)
‘outnumbers them all – it’s basically the
world’s biggest and longest running industrial disaster.’